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~~" -" :~~ ~~<~~~~~.; ~'?~~~:.~::~~~~~ :~:::~;:L(~:t~; ~-;'1'; '0 STANFORD LAW REVIEW [Vol. '9: rage 1 t',,,nnher .!I06J How~\'er. the con.uu.d 10 rel J:~nling of Ihe 1 ~tablish.d agric lion of Ih~ lI1(d cnnsumptive uS(' 111(~) seem. r~a' 10 Ih~ Lower Bd Ihi. waler is uS('" Iha( Ih~ Upper I Cli.tin,: agrieuh I", \1.....1 by tl,~ I rrquin-s :a di~tril 1\'(1)). which in C\lhural u'"", on CaJ~ 3. Th~ million acr~,f{'Ct .1fhl "omc-stjc U~ I><cn .rored in L fnr !:~n~ralion 'c> W.1I('f 3S 3 fCSc:.r h),.lruclrctric PO' In ",lv~ un"~r II In an article Ira,ling water I; W.1~ di!iagrccnl('j linn in the 1920' agricultural and run ,Iown 10 th Ihe oppo.it~ 1'0 Ih~ water of Ih, for duwnstr~am acrc,feer in any uf Ihe Mexican' I",,, Hoover sui Icrpreration of t Quenion J SUI" of lhe l Vio.ilhjn any pc ?,..OuJf'.n,pr" 71. Jo,.,. Wilbur. ':''', C]~dr. '''pr.. 2. Hydrodcctric pOWU. Th~ discussion abov~ not~d that article III (e) seems to create an impasse on the release of water for generation of electric power. The issue is one of growing significance with the closing in of Glen Canyon Dam, for now the Upper Basin has the physical means of withholding water if it can establish the legal right to do so. The article provides that the Lower Basin cannot demand water unless the water can be applied in the Lower Basin to domestic and agricultural uses and similarly that the Upper Basin cannot withhold water except for application to such uses. "Domestic uses" are defined in article II(h) to exclude generation of power. In addition to this internal problem of article III (e), there is also the problem of the relation- ship of article III (e) with article lII(d), which provides for the delivery of 75 million acre-feet at Lee Ferry every ten years "reckoned in continuing progressive series." Does article lII(d) establish the Upper Basin's mini- mum obligation, so that article III (e) applies only to water in excess of such amount, or does article IIl(e) modify the Upper Basin's IIl(d) delivery obligation? Several hypothetical cases illustrate the difficulties. Case I. Runoff is so low that the minimum of 75 million acre-feet has not been supplied at Lee Ferry in the previous ten years. The Lower Basin, however, does not need additional water for agricultural and domestic uses but rather demands it for hydroelectric power purposes. In order to comply with the demand, the Upper Basin will be required to reduce its agricul- tural and domestic uses. Does article III( e) permit the Upper Basin to avoid the IIl(d) obligation? The question, though unlikely to arise, nevertheless has relevance to an interpretation of the two sections. If we say that the Upper Basin is relieved of the III (d) obligation in this case, then we haY( concluded that article III(d) does not provide the minimum amount of water that the Upper Basin must deliver under all circumstances. Such a conclusion furnishes an argument, but not a conclusive one, in support of definite answers to the next two hypothetical cases. Case 2. By withholding water through storage, the Upper Basin, while having only 3 million acre-feet of consumptive use, has delivered to Lee Ferry only 70 million acre-feet in the last ten years. The Lower Basin con- sumptive uses have been fully satisfied, but the Lower Basin nevertheless demands release of an additional 5 million acre-feet to be used for genera, tion of power. It could be argued that, in the light of the answer to Case I, we have decided that article lII(e) modifies article III (d) ; hence, the Lower Basin cannot require delivery of the 5 million. In other words, if the Lower Basin cannot demand water for power purposes in one case, it can- not demand water for such purposes in any case because III (e) prohibits such a demand.